Official Opinion 97-32

December 12, 1997

To:

Chancellor University System of Georgia

Re:

A state universitys recognition of a group of students as an official student organization that requires that its voting members profess its religious beliefs would not violate the Establishment Clause of the First Amendment and a state university's refusal to recognize such a group would violate the group founders First Amendment rights of expressive association.

Your office has requested my opinion as to whether the Georgia Institute of Technology (“Georgia Tech”), a unit of the University System of Georgia, must recognize as an official student organization a chapter of a national campus ministry whose proffered charter “required that all of its members subscribe to several stated principles of biblical interpretation, doctrinal statement of commitment to historic Christianity and standards of personal conduct” as a condition of membership. This requirement has caused concern at Georgia Tech because a Board of Regents’ policy prohibits any student organization from excluding any student based on, among other things, the student’s religion or creed. Having researched the relevant law, it is my official opinion that a state university’s recognition of a group of students as an official student organization that requires that its voting members profess its religious beliefs would not violate the Establishment Clause of the First Amendment and that a state university's refusal to recognize such a group would violate the group founders’ First Amendment rights of expressive association.

As I understand the factual situation, a chapter of a national campus ministry organization, ReJOYce in Jesus Campus Ministries (“ReJOYce”), has applied for official recognition as a student organization at Georgia Tech. Its first application was rejected for Winter Quarter 1997 due to the aforementioned requirement. ReJOYce has agreed to modify its charter so as to divide its membership into two categories (voting and non-voting) and allow any student to be a non-voting member while maintaining the original doctrinal requirements for voting members. I understand that ReJOYce’s application will be considered by the undergraduate and graduate student councils who will make recommendations for a final decision by the faculty.

The Board of Regents’ policy in question provides that:

The Board of Regents stipulates that no student [of the] University System, on the ground of race, color, sex, religion, creed, national origin, age or handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the Board of Regents of the University System of Georgia or any of its several institutions now in existence or hereafter established.

The Policy Manual, Board of Regents of the University System of Georgia, Section 401.02.

As the administration at Georgia Tech is understandably torn between the rights of the student organizers of ReJOYce and the rights of non-Christian students, I will divide my analysis into two separate inquiries: (1) May Georgia Tech, without violating the constitutional rights of its students, recognize ReJOYce as a student organization despite its requirement that voting members be Christians? and (2) May Georgia Tech, without violating the constitutional rights of its students/ReJOYce organizers, refuse to recognize ReJOYce as a student organization due to its requirement that voting members be Christians?

Although your office has also expressed concern that recognizing ReJOYce “would run afoul of . . . . Title VI of the Civil Rights Act” of 1964, I have found no indication that discrimination based on religion is among the prohibitions of Title VI, which provides, in relevant part, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d (1994).

I answer the first question above in the affirmative. Georgia Tech may recognize ReJOYce without violating the Constitution. Federal caselaw indicates that recognizing a student group which requires at least some of its members to be adherents to the group’s religious faith does not violate the Establishment Clause of the First Amendment to the United States Constitution.

This situation arose in the case of Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839 (2nd Cir.), cert. denied, __ U.S. __, 117 S. Ct. 608 (1996). There, a group of students at a public high school sought to create a student organization whose constitution required that the group’s various officers be professed Christians. When the school rejected the group’s application to be a student organization, the group’s student founders sued under the Equal Access Act, 20 U.S.C. §§ 4071-4074, which requires that “public [secondary] school students who wish to pray and study the Bible together after school enjoy the same right to meet in school classrooms as other extracurricular groups.” Hsu, 85 F.3d at 847. The students alleged that the denial of their application denied them the equal access required by this federal statute. The school system argued that the group’s exclusionary membership policies violated its policy prohibiting discrimination against its students on the basis of religion. The United States Court of Appeals for the Second Circuit held that the group’s religious requirements were essential to the expressive content of its meetings and to the preservation of its purpose and identity and were, therefore, protected by the Equal Access Act. Although the Equal Access Act does not apply to postsecondary institutions, such as Georgia Tech, this holding is still quite useful to our analysis.

The Second Circuit went on to hold, in accordance with prior Supreme Court precedents, that the Equal Access Act and the recognition of the aforementioned student group did not violate the Establishment Clause. Id. at 867. See Board of Educ. v. Mergens, 496 U.S. 226 (1990). The court held that the school’s recognizing the religiously discriminatory student group and exempting them from the school’s usual non-discrimination policy satisfied all three prongs of the “Lemon test,” which is used to evaluate alleged Establishment Clause violations. Hsu, 85 F.3d at 862-67. See Lemon v. Kurtzman, 403 U.S. 602 (1971). First, the school’s action had a secular purpose “to ‘alleviate significant governmental interference with the ability’ of the club to engage in after-school prayers.” Hsu, 85 F.3d at 865 (quoting Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 335 (1987)). Second, it did not have the primary effect of advancing religion because recognizing the group would not constitute an endorsement of religion by the school. It would merely allow the student group itself to advance religion, which is constitutionally permissible. Id. at 866 (citing Amos, 483 U.S. at 337; Walz v. Tax Comm’n, 397 U.S. 664, 668 (1970)). Third, it would not “’impermissibly entangle government in the day- to-day surveillance or administration of religious activities.’” Id. at 866-67 (quoting Mergens, 496 U.S. at 253).

Therefore, if Georgia Tech were to decide to recognize as an official student organization ReJOYce, which proposes to require that its voting members be professed Christians, and the school disavowed any endorsement of the group’s beliefs, did not become involved in the group’s day-to-day operations and did not become involved in any internal disputes within the group (such as, whether or not a certain member is indeed a Christian), that decision would not violate the First Amendment’s Establishment Clause.

In addition, recognizing ReJOYce would not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because such a decision would be rationally related to a legitimate governmental objective. The Supreme Court has ruled that state action that allows a religious group to discriminate based on religion does not need to meet the stringent requirements of “strict scrutiny” under Equal Protection analysis. It needs only to pass a “rational relation” test. Amos, 483 U.S. at 342-43. Applying this standard in Hsu, the Second Circuit held:

[T]he state’s accommodation of religious discrimination by a religious group allows the group to define and express itself in religious terms – a state motivation that is benign and a state purpose that is legitimate. In addition, state actions that allow religious discrimination only by religious groups impose no burdens on non-religious groups. Nor do such actions in any way subordinate or stigmatize non-religious groups by suggesting that they are inferior, since they have their own ways of pursuing legitimate exclusions that help them define their groups and promote their agendas. Having considered the purpose for the exemption that the Club needs from the School, and the effect of exempting the Club from the School’s nondiscrimination policy, we conclude that there is nothing invidious about it.

Hsu, 85 F.3d at 869.

Finally, recognizing ReJOYce would not violate the First Amendment rights of association of the non-Christian students excluded from voting status in the group. One does not have a right to associate with an “unwilling partner.” Duke v. Massey, 87 F.3d 1226, 1232 (11th Cir. 1996) (citing Duke v. Cleland, 954 F.2d 1526, 1530 (11th Cir. 1992)).

Therefore, it does not appear that a decision by Georgia Tech to recognize ReJOYce would violate the Constitution. Unfortunately, because the schools in Hsu and Mergens were working under the mandates of the Equal Access Act, which does not apply to Georgia Tech, this caselaw does not tell us whether Georgia Tech must do so. As the Supreme Court has written, “But to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required. . . .” Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872, 890 (1990).

I answer the second question in the negative. Georgia Tech may not refuse to recognize ReJOYce as a student organization based on their voting-membership policy without violating the group founders’ constitutional rights. It is my opinion that not recognizing ReJOYce would violate those students’ First Amendment rights of expressive association.

In 1981, the Supreme Court decided the landmark case of Widmar v. Vincent, 454 U.S. 263 (1981), and held that a public university could not exclude a religious student group from meeting in university facilities that were commonly used by non-religious student groups unless the university could show that such exclusion was “necessary to serve a compelling state interest and that it [was] narrowly drawn to achieve that end.” Id. at 270. Although this holding is a helpful beginning to our analysis, it does not definitively resolve the question because it does not address the issue of a religious student group’s restricting voting privileges to adherents to its religion. The Court made clear the limited nature of its decision:

The basis for our decision is narrow. Having created a forum generally open to student groups, the University seeks to enforce a content-based exclusion of religious speech. Its exclusionary policy violates the fundamental principle that a state regulation of speech should be content-neutral, and the University is unable to justify this violation under applicable constitutional standards.

Id. at 277. In our situation, Georgia Tech would not be seeking to prohibit speech based on its religious content; it would be seeking to prevent discrimination against some of its students based on their religious beliefs or lack thereof.

The Supreme Court “has upheld the freedom of individuals to associate for the purpose of engaging in protected speech or religious activities.” Board of Directors of Rotary Int’l v. Rotary Club, 481 U.S. 537, 544 (1987). It is well established that this right of expressive association extends to public university campuses. Widmar, 454 U.S. at 268-69. This right, however, is not absolute. “Infringements on [the right of expressive association] may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984). See also Buckley v. Valeo, 424 U.S. 1, 25 (1976). Georgia Tech, therefore, could only abridge the ReJOYce founders’ rights to associate with whomever they choose in order to engage in religious activities if doing so were necessary to serve a compelling state interest.

In Roberts, the Jaycees had a policy of allowing only males between the ages of 18 and 35 to be “regular members,” who were allowed to vote. Women and older men could only be “associate members,” who were not allowed to vote or hold office. The Minnesota Department of Human Rights found this discrimination against women to be in violation of the Minnesota Human Rights Act. Upon challenging this finding in court, the Jaycees argued that Minnesota’s attempt to prevent the group from so discriminating against women violated the group’s rights of association. Although the Supreme Court found no violation of the group’s rights of intimate association, it did find that the state Human Rights Act infringed upon the group’s right of expressive association. Roberts, 468 U.S. at 623. The Court went on to hold, however, that this infringement was justified by the state’s compelling interest in preventing discrimination against its female citizens. Id.

Of course, in the present situation, ReJOYce, like the Jaycees, seeks to exclude a certain part of the population from being voting members and officers in its group. Based on the Court’s holding in Roberts, it is clear that Georgia Tech’s prohibiting that discrimination would infringe on the group’s First Amendment-based right of expressive association. The question then becomes whether such an infringement would be necessary to achieve a compelling state interest.

It is my opinion that the infringement here would not be so justified. Georgia Tech’s justification for infringing on the group’s expressive association rights would be the Board of Regents’ policy that prohibits student groups from discrimination on the basis of religion. While this is, in general, an important policy, there is no compelling state interest in preventing religious discrimination on the part of religious groups. Title VII of the Civil Rights Act of 1964 is instructive here. Although Title VII prohibits employers from discriminating based on religion, Congress has created an exemption which allows religious organizations to discriminate based on religious beliefs when they act as employers. 42 U.S.C. § 2000e-1 (1994). In the context of an Establishment Clause challenge to this exemption, the Supreme Court upheld it as constitutional. Amos, 483 U.S. at 327. If it is constitutionally permissible to allow religious groups to discriminate based on religion, then there can be no compelling governmental interest in preventing such discrimination. As a result, any state interest in preventing religious discrimination by a religious group would not be strong enough to justify infringing upon the association rights of students at a public university. Therefore, I do not believe that Georgia Tech may deny ReJOYce recognition as a student group based on the group’s proposal to allow only professed Christians to be voting members of the group without further justification.

Georgia Tech could still deny student group recognition to ReJOYce if ReJOYce were to impair the school’s educational functions. The Supreme Court has held, though, that an educational institution can only take such drastic action where the forbidden group’s conduct would “’materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.’” Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 509 (1969) (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)). “Associational activities need not be tolerated where they infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education.” Healy v. James, 408 U.S. 169, 189 (1972). In Healy, a state university attempted to deny a student group recognition as a campus organization based on its alleged affiliation with a national organization prone to violence. The Supreme Court overturned the school’s denial of recognition as there was no proof that the particular campus group in question had actually disrupted campus life. Id. Nothing in the facts I have seen give any indication at all that ReJOYce is involved in any disruptive behavior on the Georgia Tech campus.

It is also conceivable that a refusal to recognize ReJOYce as a student organization at Georgia Tech would implicate the group’s constitutional rights under the Free Exercise Clause of the First Amendment. As I have already opined, however, that such a denial is not permissible based on the group’s association rights, there is no need to consider here whether it would also violate the group’s free exercise rights.

Therefore, it is my official opinion that a state university’s recognition of a group of students as an official student organization that requires that its voting members profess its religious beliefs would not violate the Establishment Clause of the First Amendment and that a state university's refusal to recognize such a group would violate the group founders’ First Amendment rights of expressive association.

Prepared by:

CHRISTOPHER A. MCGRAW
Assistant Attorney General

The section of the Mergens opinion dealing with the Establishment Clause was a plurality opinion written by Justice O’Connor and joined by Chief Justice Rehnquist and Justices White and Blackmun. 496 U.S. at 247-53. However, Justice Kennedy, joined by Justice Scalia, concurred in Justice O’Connor’s conclusion. 496 U.S. at 260-62. Justice Marshall, joined by Justice Brennan, also concurred in the conclusion but stressed that the school needed to separate itself from the group’s religious speech and to avoid appearing to endorse the group’s goals. 496 U.S. at 262-70. See also Hsu, 85 F.3d at 863 n.23. Therefore, although they issued three separate opinions, eight of the nine members of the Court agreed that the Equal Access Act did not violate the Establishment Clause.

Although several members of the Court have expressed reservations about the Lemon test, it remains the appropriate test for analysis of Establishment Clause questions. See, e.g., Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 395 n.7 (1993).

The First Amendment-based right of intimate association protects only associations that are “distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship.” Roberts, 468 U.S. at 620.

I should note that my analysis would be different if ReJOYce were to seek to prohibit women or racial minorities from becoming members based on religious beliefs to that effect. The state does have a compelling interest in prohibiting such discrimination. See, e.g., Roberts, 468 U.S. at 609; Bob Jones University v. United States, 461 U.S. 574 (1983). 1